Brindabella Christian Education Limited and Minister for Education
[2024] AATA 421
•13 March 2024
Brindabella Christian Education Limited and Minister for Education [2024] AATA 421 (13 March 2024)
Division:GENERAL DIVISION
File Number(s): 2021/3753
Re:Brindabella Christian Education Limited
APPLICANT
AndMinister for Education
RESPONDENT
Tribunal:Senior Member O'Donovan
Date:13 March 2024
Place:Canberra
DECISION
The applicant is released from the implied undertaking in relation to documents produced by Bellchambers Barrett in response to the summons issued on 23 November 2022 for the purpose of making a NACC disclosure in accordance with the NACC Act.
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Senior Member O’DonovanCatchwords
PRACTICE AND PROCEDURE - application for release from the implied undertaking - - consideration of applicable principles – where the applicant is afforded protection from civil, criminal and administrative liability by another relevant Act - release given in relation to disclosure to the National Anti-Corruption Commission
Legislation
Administrative Appeals Tribunal Act 1975 ss 35, 42C
Australian Education Act 2013 ss 75, 81National Anti-Corruption Commission Act 2022 s24, 27
Cases
Anglo American Investments Pty Ltd (Trustee) v Commissioner of Taxation [2019] FCA 1027
Commonwealth v Fairfax (1980) 147 CLR 39
Home Office v Harman [1983] 1 AC 280
Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283; [2005] FCAFC 3
Re Palmer and Military Rehabilitation and Compensation Commission [2021] AATA 1347Treasury Wine Estates Ltd v Maurice Blackburn Pty Ltd [2020] FCAFC 226
Secondary Materials
Administrative Appeals Tribunal General Practice Direction (28 February 2019) Part 5
REASONS FOR DECISION
Senior Member O'Donovan
13 March 2024
Brindabella Christian College is an independent school based in Canberra.
Its primary and secondary schools receive significant financial support from the Commonwealth. In order to receive that support it is necessary for the school to be operated by what is called an Approved Authority. An Approved Authority is the body to which funding under the Australian Education Act 2013 (Cth) (Education Act) is ultimately paid. For a non-government school, the Approved Authority is the body corporate approved by the Minister.
In order to approve a body to be an Approved Authority for a school, the Minister must be satisfied that, amongst other things, the person is a body corporate or a body politic, and that the person is fit and proper to be an Approved Authority for one or more schools.
The applicant is an Approved Authority.
In 2019 the respondent through the Department of Education commenced an investigation into the conduct and structure of the applicant. The investigation was lengthy. Bellchambers Barrett undertook an audit at the school and prepared a report in relation to its findings (the Audit Report). The report reached the conclusion in relation to the question of whether the applicant was fit and proper that ‘there are significant concerns around governance and the [applicant’s] ability to meet the fit and proper person requirement under subsection 75(5) of the Act.’[1] Concerns were also raised in relation to a number of other issues. On 17 May 2021 a delegate of the respondent made a decision that the applicant was not fit and proper to be an approved authority (hereafter abbreviated to ‘not fit and proper’), and, pursuant to section 81 of the Education Act varied the applicant’s approval by making it subject to a number of conditions. Many of the concerns which prompted the investigation, and which ultimately led to the decision to impose conditions, related to conduct by the Chair of the applicant’s board, Mr Greg Zwajgenberg.[2]
[1] T43, page 996.
[2] T55, page 1237 – 1238.
On 8 June 2021 the applicant applied to the Tribunal to have that decision reviewed.
Between the application being made and the matter coming on for hearing a large volume of material was obtained and lodged with the Tribunal by both parties. That material included documents responsive to a summons served on BellchambersBarrett.
When the matter came on for hearing on 27 March 2023, the first witness called by the respondent was Mr Barrett. Mr Barrett is a partner in BellchambersBarrett and the principal author of the Audit Report.
Prior to Mr Barrett entering the witness box, an application was made by the applicant to have the Audit Report excluded from consideration by the Tribunal. The foundation of the application was that the report did not meet the standards required for admissibility under the Evidence Act. It was argued that, notwithstanding that the Tribunal is not bound by the rules of evidence, it should exclude the report on the basis that:
(a)it was not rationally probative of any matters the subject of review;[3] and/or
(b)failure to exclude would involve a breach of procedural fairness.[4]
[3] Transcript, P90 – 91; Transcript of Oral decision, 28 March 2023, P2, line 12 – 17.
[4] Transcript, P89, line 43 – 45; Transcript of Oral decision, 28 March 2023, P2, line 12 – 17.
For reasons given orally immediately following the application, I determined that the report should be taken into evidence. In rejecting the application, I noted that the report contained a wealth of material relevant to the financial performance of the applicant.[5] In relation to the arguments concerning procedural fairness, I determined that the applicant had an ability to test the contents of the report in the course of the Tribunal hearing.[6]
[5] Transcript of Oral decision, 28 March 2023, P2, line 29 – 35.
[6] Ibid, line 37 – 41.
Following that decision, I heard the parties on whether there were specific paragraphs of the report which should not be taken into evidence. I determined that some short sections of the report should not be taken into evidence.
Following the resolution of that application, Mr Barrett was called as a witness for the respondent. He adopted the Audit Report and was cross examined in relation to it. The cross-examination was robust. The following issues with the Audit Report were raised with the witness:
(a)that the report made findings which were not open when the relevant accounting standards which the witness had applied were properly understood;[7]
(b)that the report was prepared adopting a procedure which was unfair to the applicant;[8] and
(c)some recommendations lacked a proper factual foundation.[9]
[7] See, for example, Transcript, P204, line 13 – P205, line 41.
[8] Transcript, P168, line 24 – 43.
[9] See, for example, Transcript, P178, line 4 – 46.
An allegation was also put to the witness that he had deliberately withheld documents which were caught by a Tribunal summons and that he was motivated by ‘hostility’ and ‘animus’ in doing so, and acted with a ‘lack of integrity, a lack of accountability and with complete partiality.’[10]
[10] Transcript, P196, line 35 – 40.
In the course of cross-examination, a number of documents were put to Mr Barrett which had been obtained under summons. The documents were shown to the witness but were not formally tendered at the time.
Mr Barrett’s evidence concluded at 4.15pm on Wednesday 29 March 2023.
The following morning the parties requested that the Tribunal make a consent decision pursuant to section 42C of the AAT Act. Section 42C provides as follows:
(1) If, at any stage of a proceeding for a review of a decision:
(a)agreement is reached between the parties or their representatives as to the terms of a decision of the Tribunal in the proceeding or in relation to a part of the proceeding or a matter arising out of the proceeding that would be acceptable to the parties (other than an agreement reached in the course of an alternative dispute resolution process under Division 3); and
(b)the terms of the agreement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal; and
(c)the Tribunal is satisfied that a decision in those terms or consistent with those terms would be within the powers of the Tribunal;
the Tribunal may, if it appears to it to be appropriate to do so, act in accordance with whichever of subsection (2) or (3) is relevant in the particular case.
(2)If the agreement reached is an agreement as to the terms of a decision of the Tribunal in the proceeding, the Tribunal may make a decision in accordance with those terms without holding a hearing of the proceeding or, if a hearing has commenced, without completing the hearing.
The terms agreed between the parties were as follows:
Pursuant to subsection 42C(2) of the Administrative Appeals Tribunal Act 1975, the Tribunal varies the reviewable decision dated 17 May 2021 as follows:
1. The Conditions on Approval and Timeline of Conditions (Attachment A and Attachment B to the reviewable decision, respectively) are deleted and replaced with the conditions set out in the Annexure to this agreement.
The attached conditions required the applicant to, among other things:[11]
(a)expand its board;
(b)improve its capacity to produce timely and quality management reporting;
(c)agree to a repayment plan with the Australian Taxation Office;
(d)introduce a program for market testing supply of all major cost items which have not been the subject of a tender process in the last 12 months;
(e)clarify roles and responsibilities for requesting and selecting tenders;
(f)identify whether the operations of its Charnwood campus were viable;
(g)ensure all BAS reporting is up to date;
(h)resolve outstanding Fringe Benefit Tax issues by 1 May 2023.
[11] The terms of agreement, as handed up to the Tribunal, were extensive and covered some 6 pages.
A decision was made by the Tribunal reflecting the agreement between the parties.
After the resolution of the proceedings the applicant applied to be released from the implied undertaking for three purposes. In a decision handed down on 20 September 2023[12] I released the applicant from the implied undertaking for two of those purposes.
[12] Brindabella Christian Education Limited and Minister for Education [2023] AATA 3013
The applicant then made a further application to be given leave to use, for the purposes of disclosure to the National Anti-Corruption Commission (“NACC”), documents produced by Bellchambers Barrett in response to the summons issued on 23 November 2022.
For the purposes of making this decision I have had regard to the material that was before me for the purposes of the earlier decision. I have also considered the submissions received from the applicant, the respondent and from Bellchambers Barrett’s representative consistent with the timetable set down by the Tribunal.
Legal Framework
In broad terms, the implied undertaking can be described as follows:
(a)it is an obligation which is imposed on parties to court and tribunal proceedings;
(b)it applies in relation to documents (and the information those documents contain)[13] which come into a party’s possession as a result of a compulsory process associated with court or tribunal proceedings – documents obtained through a summons process or discovery are categories of material where the implied undertaking applies;
(c)when it applies, a party can only use or disclose the documents and the information they contain for the purposes of conducting the proceedings in which the documents were acquired.
[13] Treasury Wine Estates Ltd v Maurice Blackburn Pty Ltd [2020] FCAFC 226.
In relation to documents, the implied undertaking operates until the document is taken into evidence or the party is released from the implied undertaking by the relevant court or tribunal. In relation to the information contained in any document, the undertaking operates until the information is revealed in open court, or the party is released from the implied undertaking.
In the context of the Administrative Appeals Tribunal (Tribunal), if documents are taken into evidence, there is no restriction on use or disclosure from that point unless a confidentiality order is made pursuant to section 35 of the Administrative Appeals Tribunal Act 1975 (AAT Act).
In most circumstances if certain material subject to the implied undertaking has not been tendered and a party wishes to use that material for another purpose after the proceedings have been finalised, that party must apply for leave to be released from the implied undertaking. The Tribunal’s General Practice Direction describes the process by which a release can be sought.[14]
[14] Administrative Appeals Tribunal General Practice Direction (28 February 2019) Part 5.
In deciding whether to grant a release the principles which should be applied can be summarised as follows:[15]
[15] See, for example, Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283, Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217.
(a)In order to be released from the implied undertaking the applicant must show special circumstances;
(b)The notion of special circumstances does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason has been shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes;
(c)The discretion is a broad one and all the circumstances of the case must be examined;
(d)matters which are relevant include:[16]
(i) the nature of the document;
(ii) The circumstances under which the document came into existence;
(iii) The attitude of the author of the document and any prejudice the author may sustain;
(iv) Whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain;
(v) The nature of the information in the document (in particular whether it contains personal data or commercially sensitive information);
(vi) The circumstances in which the document came into the hands of the applicant; and
(vii) Most importantly of all, the likely contribution of the document to achieving justice in the other proceeding.
[16] Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283, [31], citing Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217.
In addition to the usual considerations the current request for release has another element to it.
Section 24 of the National Anti-Corruption Commission Act 2022 (NACC Act) provides as follows:
(1)If a person makes a NACC disclosure:
a.The person is not subject to any civil, criminal or administrative liability (including disciplinary action) for the NACC disclosure; and
b.no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the person on the basis of the NACC disclosure.
(2)Without limiting subsection (1):
a.The person has absolute privilege in proceedings for defamation in respect of the NACC disclosure; and
b.A contract to which the person is a party must not be terminated on the basis that the NACC disclosure constitutes a breach of the contract.
A NACC disclosure is defined as follows:
A person makes a NACC disclosure if:
(a) The person refers, or provides other information about, a corruption issue to the Commissioner or the IGIS under Part 5; or
(b) The person refers, or provides other information about, a NACC corruption issue to the Inspector under section 202 or 203; or
(c) The person gives evidence or information, or produces a document or thing, under this Act to a NACC Commissioner, the IGIS or the Inspector in relation to any of the following:
(i) A corruption issue;
(ii) A NACC Act process;
(iii) A NACC corruption issue;
(iv)A complaint made in relation to the conduct or activities of the NACC or a staff member of the NACC.
Section 27 of the NACC Act provides:
(1) If, in civil or criminal proceedings (the primary proceedings) instituted against a person in a court, the person makes a claim (relevant to the proceedings) that, because of section 24, the person is not subject to any civil, criminal or administrative liability for making a particular NACC disclosure:
(a) the person bears the onus of adducing or pointing to evidence that suggests a reasonable possibility that the claim is made out; and
(b) if the person discharges that onus—the party instituting the primary proceedings against the person bears the onus of proving that the claim is not made out; and
(c) the court must deal with the claim in separate proceedings; and
(d) the court must adjourn the primary proceedings until the claim has been dealt with; and
(e) none of the following:
(i) any admission made by the person in the separate proceedings;
(ii) any information given by the person in the separate proceedings;
(iii) any other evidence adduced by the person in the separate proceedings;
is admissible in evidence against the person except in proceedings in respect of the falsity of the admission, information or evidence; and
(f) if the person or another person gives evidence in the separate proceedings in support of the claim—giving that evidence does not amount to a waiver of privilege for the purposes of the primary proceedings or any other proceedings.
(2) To avoid doubt, a right under section 126K of the Evidence Act 1995 not to be compelled to give evidence is a privilege for the purposes of paragraph (1)(f) of this section.
The applicant submits that, in light of these provisions, it is unlikely any release from the implied undertaking by the Tribunal is either necessary or appropriate. However it goes on to submit:
Nevertheless given the importance of the issue to the Tribunal and the other parties, the Applicant raises the issue, so that the Tribunal can consider whether it is appropriate to grant the release. In doing so, the Tribunal would take into consideration the objectives of the Act in section 5 and the public purpose of the NACC. It would be inconsistent with the scheme of the Act for the Applicant to be required to disclose the details of any complaint to either the Respondent or BellChambers Barrett (each of whom is an obvious potential subject of any such complaint).
Further, the Applicant respectfully submits that it would be inappropriate for the Tribunal to exercise any of its powers or functions in such a way that there would be any impediments to the Applicant’s unfettered access to the NACC.
In response the respondent submitted that in light of the applicant’s submission that it was unlikely that release was necessary or appropriate, the application for release from the implied undertaking ought to be dismissed.
Bellchambers Barrett’s representative submitted that:
Protection from liability stemming from the disclosure does not mean that the Applicant may freely disclose material without leave from the Tribunal.
In this case noting it has not had the benefit of seeing any NACC claim, BellchambersBarrett submits that there is no reasonable possibility that the claim is made out. In accordance with section 27 of the Act, in order to be afforded the protection against liability under section 24, the onus is on the applicant to prove a reasonable possibility that the claim is made out. That onus has not been discharged in circumstances where the Applicant has not produced any submissions in respect of the reasonable possibility of the claim being made out.
This submission appears to proceed on the basis that the claim referred to in section 27 is the claim of corruption made by the person who made the NACC disclosure. This is not the case. The claim referred to is any claim invoking the protective provisions of the NACC Act made by a person in the context of proceedings brought against them for disclosing material in breach of a legal duty. The process described in section 27 does not assist analysis at this point in the process. Consequently, I am not assisted by the Bellchambers Barrett submissions.
CONSIDERATION
The existence of the implied undertaking in the Tribunal and the Tribunal’s capacity to deal with anyone who breaches it is derived ultimately from section 63(2) of the Administrative Appeals Tribunal Act 1975 (AAT Act). It provides:
A person commits an offence if:
(a)the person engages in conduct; and
(b)the conduct would, if the Tribunal were a court of record, constitute a contempt of that court.
Dealing with material in a manner inconsistent with the implied undertaking would amount to contempt in a court of record. Consequently dealing with Tribunal material in a manner inconsistent with the implied undertaking would involve the commission of a criminal offence.
Sections 24 and 27 of the NACC Act provide a form of immunity from criminal liability in relation to NACC disclosure, along with the means by which that immunity should be invoked in any proceedings. In light of those provisions, any prosecution for contempt relating to a breach of the implied undertaking constituted by a NACC disclosure would ultimately be futile.
However, merely because a person may have protection against a successful prosecution conferred by a statute in the event that a prosecution was brought for contempt, does not mean that the Tribunal should not consider and resolve an application by a person seeking to be relieved from the burdens of the implied undertaking. In my view, it would be inappropriate to leave a litigant in a position where they were left with a choice to either commit a contempt, albeit in circumstances where prosecution was extremely unlikely and successful prosecution impossible, or not proceed with a NACC disclosure at all. It is preferable to put the applicant in a position where it can provide material to the NACC confident that in doing so it is not committing an offence.
Parliament has made clear by the inclusion of a number of sections including section 24 and section 27 in the NACC Act that it wants the making of NACC disclosures not to be accompanied by any risk of adverse repercussions. In those circumstances, where a person has advised the Tribunal that they wish to make a disclosure to the NACC, it would not be appropriate for the Tribunal to place any impediment in that person’s way.
In the interests of achieving justice (the last and most important discretionary matter referred to in paragraph 27(d) above), I am satisfied that the applicant should be released from the implied undertaking to the extent necessary to allow it to make a NACC disclosure of documents produced by Bellchambers Barrett in response to the summons issued on 23 November 2022. The release extends no further than permitting disclosure of such material in accordance with the requirements of the NACC Act.
Decision
The applicant is released from the implied undertaking in relation to documents produced by Bellchambers Barrett in response to the summons issued on 23 November 2022for the purpose of making a NACC disclosure in accordance with the NACC Act.
43. I certify that the preceding 42 (forty two) paragraphs are a true copy of the reasons for the decision herein of Senior Member O'Donovan.
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Associate
Dated: 13 March 2024
Application heard on the papers Date final submissions received: 21 December 2023 Counsel for the Applicant: Mr Tom Brennan SC Solicitors for the Applicant: Ms Chloe Ellis, Hicksons Lawyers Counsel for the Respondent: Mr James Emmett SC Solicitors for the Respondent: Ms Laura Hinwood, Sparke Helmore Solicitors for Bellchambers Barrett: Ms Shannon Priestly, Griffin Legal
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